The Doctrine of Judicial Precedent - Thesis Example

“Particular jurisprudence is concerned with the fundamental assumptions of one legal system, whereas general jurisprudence covers a wider field” (Cross and Harris, 1992, p.2). Many legal theorists and commentators have agreed upon the view that the sophistication of the English legal system cannot be understood without grasping the centrality of the doctrine of judicial precedent in it. The doctrine of judicial precedent has undergone profound transformations from Eighteenth-century onwards to the changing world. It is not a static concept but constantly evolving. Hence, the difficulty to grasp the relevance and scope of the doctrine of judicial precedent within the English legal system arises. In other words, since the doctrine of judicial precedent is a dynamic concept in both theory and practice, it always redefines its relationship with the legal system as a whole.

There is a balance of power between the doctrine of precedent and other provisions in the legal system. Therefore, we need to examine some of the important aspects of the English legal system that are closely related to the doctrine of judicial precedent such as the hierarchy of courts, parliament sovereignty, the ideologies of judicial adjudication, and so on to locate the following of precedents correctly. The doctrine of judicial precedent is intrinsically interpretative. Methodologically, a hermeneutic approach would be appropriate to grasp the interpretative nature of precedents and as a doctrine its 'flexible' relationship with the overall legal system. . Certainly, a conjuncture-level analysis would not always necessarily show the centrality of the doctrine of judicial precedent within the English level system.

However, a highest-level abstraction of the English legal system based on its trajectory of evolution and development would show that the doctrine of judicial precedent is at the heart of the English legal system. As an idea in general, precedent is not confined to jurisprudence or legal practice. Usually, all sorts of people resort to experiences to guide their present actions. It is an instant help in resolving complex issues by 'lived in experience'. In addition, reliance on precedent helps the evolution and codification of ideas which otherwise would have been left forgotten in the annals of history.

Thus, looking at the past for precedent is also an act of developing a theoretical approach towards it. While exploring the dynamics of the law of primitive man, Hoebel (1964) points out that the doctrine of judicial precedent is not a sole property of the Anglo-American Common Law System. Rather, "primitive law also builds on precedents, for there too, new decisions rest on old rules of law or norms of custom, and new decisions which are sound tend to supply the foundations of future action" (Hoebel, 1964, p. 28). Historically, it is the reproduction Euro-centric, colonial point of view to argue that the doctrine of judicial precedent seems to be (nearly) absent in all legal systems other than the English legal system.

The idea of precedent is present in almost all the operational legal systems for the simple reason that it cannot be otherwise.